Patna High Court
M/S Koshi Traders vs The State Of Bihar on 12 October, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8945 of 2023
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M/s Koshi Traders through its proprietor Mohammad Ziaul Hoda, Sex- Male,
Aged about 52 years, Son of Mohammad Nasim Uddin Hoda, Residence-
Cum-Office Address Mohalla - Ranihat, Ward No. 12, Post and Police Station
- Simri Bakhtiyarpur, Bakhtiyarpur, District- Sharsha, Bihar - 85212.
... ... Petitioner/s
Versus
1. The State of Bihar through the Commissioner of State Taxes, Government of
Bihar, Patna, New Secretariat, Baily Road, Patna- 800001.
2. The Additional Commissioner (Appeals), State Taxes Division- Purnia, At,
Post and Police Station - Purnia, District- Purnia.
3. The Assistant Commissioner-Cum-Adjudicating Authority, State Taxes
Circle- Saharsa At, Post and Police Station - Saharsa, District- Saharsa.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Radha Raman, Advocate
For the Respondent/s : Mr.Raghwanand (GA-11)
Mr.Pratik Kumar (AC to GA-11)
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 12-10-2023
The writ petition is filed against the appellate order
dated 21.02.2023, Annexure-5 which rejected the appeal on the
ground of delay. The appeal was from Annexure-4 order of
assessment passed on 01.02.2020. The appellate order
specifically noticed Section 107 of the Bihar Goods and
Services Tax Act, 2017 ("BGST Act" hereafter) which permits
an appeal to be filed within three months and also apply for
delay condonation with satisfactory reasons within a further
Patna High Court CWJC No.8945 of 2023 dt.12-10-2023
period of one month. We have to take into account the saving of
limitation granted by the Hon'ble Supreme Court in Suo Motu
Writ Petition (C) No. 3 of 2020, In Re: Cognizance For
Extension of Limitation. Therein, due to the pandemic situation
limitation was saved between 15.03.2020 till 28.02.2022. It was
also directed that an appeal could be filed within ninety days
from 01.03.2022. Here, the order impugned in the appeal was
dated 19.01.2023. An appeal could have been preferred on or
before 12.08.2022 and also filed with delay before 12.09.2022.
The appeal is said to have been filed only on 19.01.2023, after
about four months from the date on which even the limitation
period expired. In the above circumstances, we find no reason to
invoke the extraordinary jurisdiction under Article 226,
especially since it is not a measure to be employed where there
are alternate remedies available and the assessee has not been
diligent in availing such alternate remedies within the stipulated
time.
2. The learned counsel points out that on 07.10.2023,
at the 52nd meeting of the G.S.T. Council, the following
recommendation has been made:
B. Measures for facilitation of trade:
(i) Amnesty Scheme for filing of appeals against
demand orders in cases where appeal could not be
Patna High Court CWJC No.8945 of 2023 dt.12-10-2023
filed within the allowable time period:
The Council has recommended providing an
amnesty scheme through a special procedure under
section 148 of CGST Act, 2017 for taxable persons, who
could not file an appeal under section 107 of the said
Act, against the demand order under section 73 or 74 of
the CGST Act, 2017 passed on or before the 31st day of
March, 2023, or whose appeal against the said order was
rejected solely on the grounds that the said appeal was
not filed within the time period specified in sub-section
(1) of section 107. In all such cases, filing of appeal by
the taxpayers will be allowed against such orders
upto 31st January, 2024, subject to the condition of
payment of an amount of pre-deposit of 12.5% of the tax
under dispute, out of which at least 20% (i.e. 2.5% of
the tax under dispute) should be debited from Electronic
Cash Ledger. This will facilitate a large number of
taxpayers, who could not file appeal in the past
within the specified time period.
3. This is issued as a press release issued by the G.S.T.
Council. The note to the press release is also extracted
hereunder:
Note: The recommendations of the GST Council have
been presented in this release containing major item of
decisions in simple language for information of the
stakeholders. The same would be given effect through
the relevant circulars/ notifications/ law amendments
which alone shall have the force of law.
4. Hence, as soon as the recommendation is given
Patna High Court CWJC No.8945 of 2023 dt.12-10-2023
effect to, the petitioner/assessee gets a right to seek for
restoration of the appeal filed before the first Appellate
Authority. Reserving such liberty, if the recommendation is
brought out as a notification or circular, the writ petition would
stand dismissed.
5. It is made clear that the dismissal of the writ
petition would not stand in the way of the petitioner seeking for
restoration of the appeal or filing a fresh appeal, if and when the
recommendation of the G.S.T. Council is brought out as
notification/ circular/ amendment.
(K. Vinod Chandran, CJ)
( Rajiv Roy, J)
Anushka/-
AFR/NAFR
CAV DATE
Uploading Date 16.10.2023
Transmission Date
